Dividing a Pension in your divorce

Posted on Jun 24, 2018 6:00am PDT

If you or your spouse have worked for a company or more likely a public entity for an extended period of time it is likely that either of you has a pension that has been made available to you for retirement. For those of you who are looking at the word “pension” and are scratching your head as to what that means exactly, a pension is a general term that is applied to any type of retirement plan.

These are benefits that in some ways you may have traded in the ability to make more in your working life in order to possibly retire early with the security that a pension provides.

A divorce can turn that plan on its head and put you in a position where you need to learn about pensions- whether you want to protect as much of your own as possible or find out the best way to divide a plan owned by your spouse.

The family laws in Texas have it that a pension that has been earned by you or your spouse during the course of your marriage is considered to be a part of the community estate. This means that the pension is largely subject to being divided up in your divorce- either by a judge or by you and your spouse in mediation.

There is no automatic division, however, and you or your spouse must request that the pension by divided as a community asset in your Original Petition for Divorce. Additionally, there are laws in place that you and your attorney must follow once a portion of the pension has been allocated to you in your Divorce Decree.

Today’s blog post from the Law Office of Bryan Fagan will discuss steps that can be taken to protect yourself during your divorce from the perspective of your pension as well as how your attorney will assist you in actually transferring your portion of the pension from your ex-spouse to you.

Pension essentials for your divorce case

It is not enough to ask for a portion of your spouse’s pension when he or she retires years after your divorce case ends. You must request a portion during the divorce and state that you are doing so in your Original Petition for Divorce. Simply stating that there is community property that will need to be divided will be sufficient.

Once you and your spouse have both hired divorce attorneys your attorney and his/her will be able to negotiate and make known to the other what points are actually being negotiated over. The pension plan will be a part of this negotiation.

Negotiations can be informal- as in between the attorneys or between you and your spouse directly. These sort of informal discussions occur during the entirety of your divorce and can lead to both sides learning what points are important to each.

Formal negotiations occur at mediation. Mediation is where you and your spouse select an independent, third-party attorney to host a negotiation session with both of you and your attorneys.

You and your spouse will likely be in separate rooms and the mediator will act as a ping pong ball- bouncing back and forth between your rooms in an attempt to communicate settlement offers, negotiate points further and push both sides towards a settlement. This is where the majority of divorce cases in Texas end, as opposed to going all the way to a trial.

Your attorney will learn from you what retirement plans are available to you and your spouse at the outset of your divorce. He or she will likely submit questions to your spouse called Discovery where more information will be turned over so that you all can learn what is available as far as retirement is concerned.

Learning this information can be a great leg up for you in that your attorney can contact the plan administrator for the pension and find out how an order will need to be worded in order to efficiently turn control over to you of any portion of pension awarded to you in the divorce.

Qualified Domestic Relations Order (QDRO)

A separate court order that will allow you to actually gain control of the pension portion awarded to you is called a Qualified Domestic Relations Order (QDRO). Once your divorce has been finalized and you have been awarded a portion of the pension. This order is separate from your Divorce Decree and will be filed with the court and turned into the plan administrator that we were referencing earlier.

Your QDRO will need to contain all the important and necessary information that the plan administrator requires so that the basics can be ascertained: who to pay and when to issue the payments. Your attorney will need to review the plan language to determine how this particular pension plan allows for payouts.

Some plans allow for a single lump sum payment while others do not, for example. It is important to learn what your pension plan allows for and to draft the QDRO accordingly.

From my experience, it is important to get your QDRO done, reviewed and drafted prior to going to court to finalize your divorce in front of the judge. If you don’t do this, you will become frustrated because your divorce will officially be over but an important part of your case will be left unfinished.

Your attorney will be frustrated because he or she wrapped up a divorce but has a little extra work hanging around yet to do. Work with your attorney on completing this step prior to heading to court and you will both be happier for it.

Questions on pensions and divorce? Contact the Law Office of Bryan Fagan today

From Baytown to Waller and up to The Woodlands, the Law Office of Bryan Fagan represents southeast Texas families with vigor. We offer free of charge consultations six days a week where one of our licensed family law attorneys can address any questions you may have. To schedule a consultation please contact our office today.

Law Office of Bryan Fagan | Spring Divorce Lawyer

The Law Office of Bryan Fagan routinely handles matters that affect children and families. If you have questions regarding divorce, it's important to speak with a Spring, TX Divorce Lawyer right away to protect your rights.

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The information on this website is for general information purposes only. Nothing on this site should be taken as legal advice for any individual case or situation. This information is not intended to create, and receipt or viewing does not constitute, an attorney-client relationship.